T 

N2135 
Ec7p. 
1914 


lAi 

o 

1  0  ^ 

f^=2  c: 

i  n  = 

— ^^  X 

H  U  = 

^^^  ^ 

01 

1  6  = 

^^=  52 

81 

-^^  ^ 

3  m 

^~^  r- 

-  33 

53 

=  J> 

1  ft  ^s 

9  = 

0  — 

o 

A     ^~ 

^^—  ^ 

H 

THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

Law  Section 
California  State  Library 


PRELIMINARY    REPORT 


ON 


Efficiency  in  the  Administration 

of  Justice 


PREPARED  BY 

CHARLES  W.  ELIOT  LOUIS  D.  BRANDEIS 

MOORFIELD  STOREY  ADOLPH  J.  RODENBECK 

ROSCOE  POUND 


FOR 


THE    NATIONAL    ECONOMIC    LEAGUE 


6  BEACON  STREET,  BOSTON.  MASS. 


T 


•  • 

•  • 

•  •   • 

•  •     • 
•    •     • 

• 

• 

• 

• 
• 

• 
• 

•  •* 

•  0 

•  • » 

•  • 

•  •• 

•  *  * 

•  •  •  • 

•  •     • 

• 

• 

••• 

•        • 

• 

•  • 

» 

»  • 

• 

•  •• 

•  •*    • 

•  • 

•     •• 

•  • 

k  « 

• 

• 

•    ••     • 

•     •   • 

»    *  * 

•  • 

♦ 

•  • 

•    • 

•    » 

•    •  •  • 

• 

• 

•  • 

» 

• 

•   •  • 

•   • 

•  *      • 

• 

* 

•  * 

•  *  • 

•  •• 

•  • 

•  • 

V 

CONTENTS 

Introduction  —  Intrinsic  difficulties  involved  in   the 

administration  of  justice  -  -  _  5 

I  Causes     of    Unsatisfactory  Lawmaking    by 

the  Courts  _____  7 

A    General  Causes  .  -  -  _  7 

i     New    problems    of    industrial    and    urban 

communities  -----  7 

ii     Shifting  of  ideas  as  to  the  nature  of  justice 

and  end  of  the  law      -  -  -  -  7 

iii  The  great  increase  of  litigation  involved  in 
expansion  of  commerce  and  industry  and 
growth  of  population  ...  § 

B     Local  Causes  _  .  .  _  8 

i     Tenure,    mode  of  choice  and  personnel  of 

the  bench        -----  8 

ii     Education  and  organization  of  the  bar        -  12 

iii     Bad  legislative  technique      -  -  -  13 

II  Causes    of  Inefficiency    in  the    Disposition 

of  Litigated  Causes  -  -  -  13 

A     Causes  of  General  Operation      -  -  14 

i     Defective  organization  of  courts      -  -  14 

ii     Want  of  proper  organization  of  the  admin- 
istrative and  clerical  side  of  tribunals  -  17 

iii     Procedure        ----,-  18 

a     Too   much  legislation  as  to  details  of 

procedure  -  -  -  -  18 

b  Treatment  of  rules  of  practice  as  giv- 
ing procedural  rights  to  parties  which 
they  may  vindicate  although  their  sub- 
stantive rights  are  not  affected  -  19 

c     Record-worship  -  -  -  20 

d    Preservation  of  sharp  formal  issues      -  23 

e  Throwing  of  causes  out  of  court  when 
a  transfer  or  change  of  procedural 
form  would  save  proceedings  already 
had 24 

/    Piecemeal  disposition  of  controversies  24 

g    Too  many  trials  and  retrials      -  -  25 

//    Too   little   power   of   guidance   of   the 

jury  by  the  court  -  -  -  26 


i    Too  much  use  of  the  jury  as  a  tribunal 

for  ordinary  civil  causes  -  -  27 

/    Too  much  appellate  procedure  -  28 

iv     Concurrent  jurisdiction  of  state  and  federal 

courts  -----  28 

V     The  tendency  to  local  particularism  -  29 

B     Causes  of  Local  Operation  .  -  29 

i     Special  problems  in  metropolitan  cities       -  29 

ii     Want  of  adequate  provision  for  disposition  29 

of  petty  causes  _  _  _  - 

iii  Survival  of  legal  institutions  and  proced- 
ural methods  intended  to  obstruct  collec- 
tion of  debts  in  pioneer  communities  -  30 

III     Causes  of  Inefficiency  in  Enforcement  of 

Law  .----.  30 

A     General  Causes  -  -  -  -  30 

i     Want  of  proper  co-ordination  between  law 

and  administration  -  -  -  30 

ii     Breakdown  of   the  common  law  polity   of 

individual  initiative  -  -  -  30 

iii     Increased    burden    upon    law    in    modern 

society  -----  30 

iv     Divergence  of  class  interests  -  -  30 

v     Failure  of  popular  interest  in  justice  -  30 

B     Local  Causes  -  -  -  -  31 

i     Diversity  of  interests  in  different  parts  of 

the  same  state  -  -  -  -  31 

ii     Contact   of   criminal   law  and  its  enforce- 
ment with  politics      -  -  -  -  31 

Remedies  ..._--  32 

1  Proper  training  of  the  legal  profession  -  32 

2  Selection  of  judges  -  -  -  -  32 

3  Unification  of  the  judicial  system  -  -  32 

4  Giving  the  courts  power  to  make  rules  of  pro- 

cedure    and     greater    power     in     procedure 
generally  -----  32 

5  Improvement  of  legislative  law-making  -  32 

6  Thorough  study  of  the  new  problems  of  indus- 

trial and  urban  societies  -  -  -  32 


MEMORANDUM  IN  RE  DRAFT  REPORT 


The  material  utilized  in  this  report  has  been:  First, 
a  collection  of  newspaper  clippings  from  all  parts  of 
the  country  begun  in  1907  and  continued  to  the  pres- 
ent ;  second,  a  card  catalogue  of  decisions  from  every 
part  of  the  country  in  which  questions  of  practice  or 
procedure  were  involved  which  seemed  to  indicate 
defects  or  possibilities  of  improvement;  third,  a  col- 
lection of  books  and  articles  in  periodicals,  both  legal 
and  lay,  dealing  with  every  phase  of  judicial  adminis- 
tration. This  material  was  put  at  the  disposition  of 
the  committee  by  Mr.  Pound. 

No  attempt  has  been  made  to  discuss  any  propo- 
sition in  detail.  The  purpose  has  been  instead  to  state 
what  seemed  to  be  the  principal  causes  of  inefficiency 
in  the  administration  of  justice  as  indicated  by  the 
materials  above  referred  to. 

Conditions  differ  very  much  in  different  parts  of  the 
country  and  many  things  which  are  acute  in  one  juris- 
diction are  quite  unknown  in  another.  In  most  dis- 
cussions of  the  subject  a  tendency  appears  to  assume 
that  a  grave  local  abuse  is  general  to  the  whole  coun- 
try. Little  attention  has  been  paid  to  local  difficulties 
except  as  they  have  seemed  to  obtain  in  a  considerable 
number  of  jurisdictions. 

If  it  is  desired,  a  complete  bibliography  may  easily 
be  appended  to  the  report. 


EFFICIENCY  IN  THE  ADMINISTRATION 
OF  JUSTICE 

To  the  Members  of  the  National  Economic  League: 

Inefficiency  in  the  administration  of  justice  may  in- 
clude two  ideas,  first,  inadequacy  of  the  legal  and  ju- 
dicial system  to  meet  the  purposes  for  which  public 
administration  of  justice  is  instituted ;  second,  inade- 
quacy of  the  legal  and  judicial  system  to  achieve  all 
which  the  public  expects  of  it.  A  few  words  seem  to 
be  desirable  with  respect  to  the  latter.  We  must  rec- 
ognize that  intrinsic  difficulties  involved  in  the  admin- 
istration of  justice  according  to  law  have  always  op- 
erated and  are  likely  always  to  operate  to  bring  about 
a  certain  amount  of  dissatisfaction  with  the  public 
administration  of  justice.  The  advantages  involved  in 
law  are  purchased  at  the  expense  of  certain  disadvan- 
tages. Chief  among  these  is  the  necessarily  mechan- 
ical operation  of  legal  rules  which  is  one  of  the  penal- 
ties of  uniformity.  This  obstacle  to  the  administration 
of  justice  according  to  law  may  be  minimized  but  may 
not  be  obviated.  As  laws  are  general  rules,  the  proc- 
ess of  making  them  involves  elimination  of  elements 
of  particular  controversies  which  are  special  to  those 
controversies.  In  eliminating  immaterial  factors  to 
reach  a  general  rule  in  view  of  the  infinite  variety  of 
controversies  and  the  almost  imperceptible  differences 
of  degree  in  their  approximation  to  recognized  types 
it  is  not  possible  entirely  to  avoid  the  elimination  of 
factors  which  will  be  more  or  less  material  in  some 
particular  controversy.  To  take  account  of  all  these 
variations   an  over-wide   discretion   in   the  magistrate 


would  be  required.  On  the  other  hand,  if  exceptions 
and  qualifications  and  provisos  are  appended  to  legal 
rules  to  any  great  extent  the  system  of  law  becomes 
cumbrous  and  unworkable.  A  compromise  must  be 
made;  a  middle  course  must  be  found  between  over- 
wide  discretion  and  over-minute  law  making.  Neces- 
sarily, therefore,  legal  standards  are  more  or  less  arti- 
ficial and  a  certain  amount  of  divergence  between  legal 
and  judicial  standards  on  the  one  hand  and  the  ethical 
standards  of  each  individual  must  be  looked  for. 
Again,  as  law  formulates  settled  ethical  ideas  it  cannot 
in  periods  of  transition  accord  with  the  more  ad- 
vanced conceptions  of  the  moment.  Formulations  of 
public  opinion  cannot  become  effective  as  laws  until 
public  opinion  has  become  fixed  and  settled  and  can- 
not change  until  a  change  of  public  opinion  has  be- 
come reasonably  complete.  In  a  time  when  groups 
and  classes  and  interests  are  so  diversified  that  con- 
flicting ideas  of  justice  obtain  in  the  community  it  is 
impossible  that  everyone  be  satisfied  with  the  public 
administration  of  justice.  Moreover  the  layman  is  apt 
to  assume  that  the  administration  of  justice  is  an  easy 
task  to  which  anyone  is  competent.  This  feeling  that 
special  knowledge  and  special  preparation  are  not 
necessary  to  enable  one  to  pass  upon  the  intricate  con- 
troversies of  a  modern  community  contributes  to  the 
unsatisfactory  administration  of  justice  in  many  parts 
of  the  United  States.  Rules  of  law  sum  up  the  ex- 
perience of  many  judges  with  many  cases  and  enable 
the  magistrate  to  apply  that  experience.  One  who 
has  not  had  the  proper  training  is  seldom  more  com- 
petent to  construct  or  apply  such  a  formula  than  he  is 
to  construct  or  apply  the  formulas  which  enable  en- 
gineers to  make  use  of  the  experience  of  their  prede- 
cessors. The  public  is  more  interested  in  maintaining 
the  highest  scientific  standard  in  the  administration  of 
justice  than  it  always  realizes.  The  daily  criticism  of 
trained  minds,  the  knowledge  that  nothing  which  does 
not  conform  to  the  principles  and  received  doctrines 
of  legal  science  will  be  able  to  meet  that  criticism  does 


more  than  any  other  agency  for  the  everyday  efficiency 
of  courts  of  justice.  Finally  law  involves  restraint 
and  regulation,  and  necessary  and  salutary  as  such 
restraint  and  regulation  are,  individuals  are  never 
reconciled  to  it  entirely.  This  is  especially  true  when 
a  feeling  prevails  that  each  individual  as  an  organ  of 
the  sovereign  democracy  may  judge  how  far  he  shall 
conform  his  action  at  the  crisis  of  action  to  the  law 
which  he  has  helped  to  make. 

Turning  to  the  matter  immediately  in  hand,  name- 
ly, inadequacy  of  the  legal  and  judicial  system  to 
achieve  the  purposes  for  which  law  and  courts  exist, 
the  subject  may  be  taken  up  under  three  heads  since 
the  judicial  administration  of  justice  involves,  first, 
finding  and  interpreting  the  law,  which  means  largely 
making  the  law ;  second,  the  application  of  law  to  con- 
troversies which  are  brought  before  the  court  by  in- 
dividual litigants ;  and  third,  the  enforcement  of  the 
law  where  no  private  person  comes  forward  to  raise 
a  controversy. 

I.  Law-making  through  the  agency  of  the  courts 
falls  short  of  what  it  should  be  through  certain  gene- 
ral causes  operating  over  the  whole  country  and  also 
through  local  causes  peculiar  to  particular  sections  of 
the  country. 

The  general  causes  appear  to  be  three.  First,  the 
demands  of  industrial  and  urban  communities  raise 
problems  which  the  existing  legal  system,  fashioned  to 
meet  the  demands  of  a  pioneer  and  agricultural  com- 
munity of  the  first  half  of  the  nineteenth  century,  is 
not  well  prepared  to  meet.  The  pressure  of  industrial 
accidents,  a  problem  unknown  to  the  formative  period 
of  our  present  law,  the  pressure  of  social  legislation 
which  requires  more  speedy  and  sure  enforcement 
than  the  legislation  of  the  past,  may  be  instanced. 
Second,  the  shifting  of  ideas  the  world  over  as  to  the 
nature  of  justice  and  the  end  of  the  law  is  putting  a 
heavy  pressure  upon  the  administration  of  justice  in 
all  parts  of  the  world  and  only  the  gradual  working 
out  and  fixing  of  the  new  conception  can  relieve  the 


pressure.  Third,  the  great  increase  of  Htigation  in- 
volved in  the  expansion  of  commerce  and  industry 
and  the  rapid  growth  of  population  has  crowded  the 
calendars  of  our  courts  to  such  an  extent  as  to  pre- 
clude the  thoroughness  in  discussion  by  counsel  and 
the  deliberation  in  study  by  the  court  which  is  re- 
quired in  a  constructive  period.  For  instance,  where 
a  century  ago  a  volume  of  the  reports  of  the  Supreme 
Court  of  the  United  States  covered  a  period  of  four- 
teen months,  during  which  time  eighty-four  causes 
were  decided,  a  single  volume  of  the  reports  of  that 
court  covers  the  single  day  of  June  i6,  191 3,  in  which 
decisions  were  rendered  in  sixty  causes.  The  highest 
type  of  judicial  law-making  may  not  reasonably  be  ex- 
pected under  such  circumstances. 

Three  causes  of  more  restricted  operation  may  be 
said  to  be  local  causes.  Each  of  these  operates  to  a 
certain  extent  in  all  of  our  jurisdictions  but  much 
more  so  in  some  than  in  others.  These  are,  first,  the 
tenure,  mode  of  choice  and  personnel  of  the  bench. 
Second,  the  education  and  organization  of  the  bar. 
And,  third,  a  bad  state  of  legislative  technique. 

(i)  The  best  of  which  judicial  law-making  is  capa- 
ble may  be  expected  only  from  the  best  type  of  court 
before  which  the  best  type  of  lawyer  practises.  So 
long  as  the  public  insists  in  so  many  of  our  jurisdic- 
tions upon  conditions  of  tenure  and  modes  of  selec- 
tion which  preclude  the  type  of  lawyer  best  fitted  to 
do  such  work  from  going  upon  the  bench,  and  pre- 
vent the  influence  of  the  bar  from  being  felt  as  it 
should  be  in  the  selection  of  judges  it  is  unreasonable 
to  look  for  improvement  of  the  law  through  judicial 
empiricism  or  for  constructive  law-making  through 
decisions  which  may  be  compared  with  the  classical 
achievements  of  the  American  bench  in  the  construc- 
tive period  prior  to  1850. 

In  what  may  be  styled  fairly  the  classical  period  of 
American  law  the  bench  was  for  a  greater  portion  of 
the  time  appointive  or,  if  elective,  elected  by  the  legis- 
lature and  tenure  was  assured  for  life.     Even  after 


the  movement  for  an  elective  judiciary  gained  strength 
about  1850,  the  traditions  of  the  older  order  main- 
tained a  high  standard  for  some  time.  Since  the  Civil 
War,  except  in  New  England,  the  bench  has  been  elec- 
tive with  few  exceptions  and  for  the  most  part  for 
relatively  short  terms.  The  constructive  work  in 
American  law,  the  adaptation  of  English  case  law  and 
English  statutes  to  the  needs  of  a  new  country  and 
the  shaping  of  them  into  an  American  common  law, 
was  done  by  appointed  judges  while  most  of  the  tech- 
nicality of  procedure,  mechanical  jurisprudence  and 
narrow  adherence  to  eighteenth-century  absolute  ideas 
of  which  the  public  now  complains  is  the  work  of 
elected  judges.  The  illiberal  decisions  of  the  last 
quarter  of  the  nineteenth  century  to  which  objection 
is  made  today  were  almost  wholly  the  work  of  popu- 
larly elected  judges  with  short  tenure.  Moreover, 
where  today  we  have  appointive  courts  these  courts  in 
conservative  communities  have  been  liberal  in  ques- 
tions of  constitutional  law  where  elective  judges,  hold- 
ing for  short  terms,  have  been  strict  and  reactionary. 
For  illustration  one  may  compare  the  decisions  of  the 
Supreme  Court  of  the  United  States  and  of  the  su- 
preme judicial  court  of  Massachusetts  on  the  subject 
of  liberty  of  contract  with  those  of  the  supreme  courts 
of  Illinois  and  Missouri.  Also  one  may  compare  the 
decisions  of  the  highest  courts  of  Massachusetts  and 
of  New  Jersey  on  the  subject  of  workmen's  compensa- 
tion legislation  with  the  pronouncement  of  the  Court 
of  Appeals  of  New  York.  So  in  procedure,  the  judi- 
cial application  of  the  Massachusetts  practice  act 
should  be  compared  with  the  fate  of  the  New  York 
code  of  civil  procedure  of  1848.  The  later  New  York 
code  attempted  the  impossible  in  the  way  of  detail. 
But  it  would  have  been  quite  as  easy  to  make  tech- 
nicality of  procedure  an  end  in  Massachusetts  as  in 
New  York.  A  liberal  application  of  the  New  York 
code  of  1848  by  strong  judges,  resisting  the  attempt 
of  counsel  to  use  the  code  in  tlie  game  of  litigation, 
might  have  achieved  a  modern  procedure  half  a  cen- 

9 


tury  ago.  Under  our  system  of  making  law  through 
judicial  empiricism  almost  everything  turns  on  the 
strength,  capacity  and  learning  of  the  judge.  We  re- 
quire much  more  of  a  judge  than  popularity  or  hon- 
est mediocrity  or  ignorant  zeal  for  the  public  welfare 
can  bring  about.  If  our  system  is  to  work  well,  ex- 
perts must  be  chosen  and  in  consequence  the  mode 
of  choice  must  be  one  which  will  be  governed  by  ex- 
pert knowledge  of  the  qualifications  of  those  who  are 
chosen.  Experience  has  shown  that  in  states  where 
the  bar  have  the  most  influence  in  the  choice  of  judges 
the  bench  achieves  the  best  results.  That  American 
law  grew  so  rapidly  and  was  fashioned  so  well  up  to 
the  Civil  War  and  stood  still  so  steadfastly  for  a  time 
thereafter  was  by  no  means  wholly  due  to  causes  that 
made  for  rigidity  of  law  throughout  the  world.  It 
was  due  in  large  part  to  a  change  in  the  character  of 
the  bench  as  a  whole  in  our  state  courts.  That  this 
change  is  closely  connected  with  the  change  in  the 
mode  of  choice  and  tenure  of  judges  which  became 
general  after  1850  is  demonstrable.  For  no  such 
change  took  place  in  those  few  jurisdictions  in  which 
the  courts  remained  appointive.  Because  of  the  mode 
of  choice  and  of  secure  tenure  the  judicial  office  con- 
tinued to  attract  the  leaders  of  the  profession.  Prior 
to  the  era  of  elective  judges,  Tilghman  and  Gibson  in 
Pennsylvania,  a  succession  of  judges  for  twenty-three 
years  in  the  Supreme  Court  of  New  York  which  no 
elective  bench  has  been  able  to  approach,  the  great 
Georgia  bench  of  1845,  ^^^  Blackford  in  Indiana  had 
shown  judicial  law-making  at  its  very  best.  Kent, 
Marshall,  Story,  Shaw  and  Gibson,  the  ornaments  of 
American  judiciary,  are  of  this  period ;  and  Chief  Jus- 
tice Doe,  the  one  judge  since  the  Civil  War  who  stands 
v/ith  them  in  constructive  ability,  was  appointed. 
There  have  been  strong  individual  judges  under  the 
system  of  popular  election.  Moreover,  Michigan  at 
one  time  had  one  of  the  strongest  courts  which  has 
ever  sat  in  the  country  chosen  by  popular  election. 
But  the  succession  was  not  kept  up.     Nor,  except  in 

10 


this  one  case,  has  popular  election  given  us  strong 
courts  as  a  whole.  On  the  other  hand  exceptionally 
strong  appointive  courts  since  the  Civil  War  have  been 
by  no  means  uncommon.  It  should  be  noted  also 
that  while  judges  of  the  first  order  have  sometimes 
succeeded  in  holding  their  places  by  popular  election, 
quite  as  often  they  have  failed  to  do  so. 

The  unfortunate  situation  in  which  the  judge  sits 
as  a  mere  umpire  in  a  game  between  counsel  grew  up 
under  an  elective  bench  and  is  to  be  found  chiefly,  if 
not  wholly,  where  the  judiciary  is  elected  for  short 
terms.  This  is  true  also  to  a  large  extent  of  the  well- 
known  abuse  which  often  requires  at  least  as  long 
a  time  for  the  selection  of  a  jury  as  for  the  trial  of  a 
cause.  This  condition  for  instance  is  quite  unknown 
in  the  federal  courts  or  under  the  appointed  judiciary 
in  Massachusetts  and  New  Jersey.  Lack  of  control 
over  the  bar  on  the  part  of  judges,  who  cannot  insist 
upon  expedition  without  imperilling  their  positions,  is 
not  the  least  cause  of  unnecessary^  continuances  and 
postponements  and  of  the  wranglings  of  counsel  and 
the  unfortunate  treatment  of  witnesses  which  have 
cast  discredit  upon  American  trials. 

Machinery  is  not  the  important  thing.  What  is  im- 
portant is  that  experts  be  chosen.  To  that  end  it  is 
essential  that  the  bar  be  able  to  make  its  influence  felt 
by  the  selecting  authority  and  that  tenure  be  secure. 
The  bad  eminence  in  rejecting  social  legislation 
achieved  by  elective  courts  in  New  York  and  in  Illi- 
nois, the  equally  bad  eminence  with  respect  to  tech- 
nicalities of  criminal  procedure  achieved  at  one  time 
by  elective  courts  in  Missouri,  Indiana  and  Texas,  and 
the  fate  of  the  codes  of  procedure  at  the  hands  of 
elective  judges  show  abundantly  that  an  elective  judi- 
ciary is  not  necessarily  a  mode  of  liberalizing  the 
law.  On  the  contrary,  a  mediocre  bench  is  almost 
certain  to  be  technical.  Our  law  is  suffering  today 
from  the  unhappy  experiment  of  two  generations  ago 
whereby  logical  carrying  out  of  an  abstract  political 
theory  was  preferred  to  expertness  and  qualification 


11 


for  their  office  on  the  part  of  officials  in  whom  expert- 
ness  is  of  the  highest  import  to  the  commonwealth.  A 
similar  experiment  with  respect  to  administrative  offi- 
cers ultimately  taught  us  the  value  of  an  expert  civil 
service  with  secure  tenure. 

(ii)  Likewise  so  long  as  the  public  in  so  many  of 
our  jurisdictions  insists  upon  treating  the  practice  of 
the  law  as  a  mode  of  earning  a  livelihood  which  should 
be  open  to  everyone  and  refuses  to  exact  those  re- 
quirements of  preliminary  education  and  thorough 
professional  training  which  are  required  not  merely 
to  make  the  lawyer  an  efficient  agent  in  the  public  ad- 
ministration of  justice  through  thorough  presentation 
of  causes,  but  also  to  make  him  an  effective  public 
servant  through  initiation  and  promotion  of  improve- 
ments in  legal  institutions  and  doctrines,  attempts  at 
reform  addressed  only  to  judicial  machinery  will  be 
quite  futile. 

Until  recently  there  were  no  serious  requirements 
for  admission  to  the  bar  outside  of  a  few  states. 
Many  states  today,  some  of  them  old  and  intelligent, 
are  substantially  without  such  requirements.  The 
legislature  of  Massachusetts  in  its  present  session  has 
forbidden  the  imposition  of  any  standard  of  preliminary 
education.  In  one  state  by  express  constitutional  pro- 
vision good  moral  character  is  the  sole  requisite  to  ad- 
mission. Any  legal  voter  of  good  moral  character 
may  practise  law.  In  another  state  in  1912  there  was 
a  debate  as  to  the  expediency  of  requiring  candidates 
for  admission  to  the  bar  to  have  attained  their  ma- 
jority, and  it  was  stated  that  "every  member  of  the 
Court  of  Appeals  began  to  practise  about  the  age  of 
eighteen."  Of  late  there  has  been  a  steady  growth 
of  sentiment  within  and  without  the  bar  which  has 
produced  more  adequate  requirements  of  preliminary 
study  and  preliminary  general  education  in  a  majority 
of  the  states.  But  this  improvement  is  the  work  of  a 
few  years,  is  still  in  progress  in  many  states,  and  has 
much  farther  to  go  everywhere.  In  no  state  is  there 
any  requirement  that  those  who  come  to  the  bar  have 

12 


that  minimum  of  general  education  which  will  enable 
them  to  deal  properly  with  the  social  and  economic 
questions  which  our  polity  commits  to  the  courts. 

(iii)  Not  the  least  cause  of  inefficiency  in  the  exer- 
cise of  the  law-finding  or  law-making  function  of  our 
courts  is  the  bad  state  of  legislative  technique  w'hich 
exists  in  most  American  jurisdictions.  Legislative 
reference  bureaus  are  remedying  this  evil  to  some 
extent,  and  no  doubt  these  bureaus  and  the  study  of 
the  science  of  legislation  which  is  now  becoming  gene- 
ral will  gradually  improve  our  enacted  law.  But  as 
the  matter  stands,  in  many  of  the  states  the  law  has 
an  enormous  mass  of  legislation  imposed  upon  it  an- 
nually which  is  worked  out  on  no  common  system,  is 
coordinated  neither  with  the  existing  law  nor  with 
its  several  parts,  and  is  often  inconsistent  with  itself 
on  fundamental  points.  This  is  true  particularly  with 
respect  to  legislation  in  matters  of  criminal  law. 
Moralists,  sociologists  and  criminologists  are  by  no 
means  agreed  as  to  the  basis  of  punitive  justice,  and 
satisfaction  of  a  public  desire  for  vengeance  is  re- 
garded by  many  as  a  legitimate  as  well  as  practically 
necessary  end  of  penal  treatment  of  ofifenders,  while 
others  regard  the  retributive  theory  as  the  bane  of 
criminal  law.  This  disagreement  is  reflected  in  legis- 
lation. Not  only  do  statutes  enacted  at  dififerent  times 
proceed  upon  different  theories,  but  adherents  of  one 
theory  will  procure  one  measure  and  those  of  a  dif- 
ferent theory  another  from  the  same  legislators,  who 
have  no  theory  of  their  own.  The  courts  are  required 
to  make  a  workable  system  out  of  this  mass  of  legis- 
lation. But  it  must  be  clear  that  the  task  is  difficult 
and  must  involve  much  experimenting  that  impairs  the 
effectiveness  of  the  legal  system. 

Standing  parliamentary  counsel,  after  the  English 
and  Canadian  model,  and  more  general  study  of  the 
principles  and  practice  of  legislation  seem  to  be  the 
only  immediate  remedies  available. 

II.  With  respect  to  the  application  of  law  to  liti- 
gated  causes   brought   before   the   courts   by    injured 

13 


parties,  the  causes  of  inefificiency  may  once  more  be 
divided  into  general  causes  and  local  causes. 

A.  Five  general  causes  appear  to  be  important:  (i) 
the  defective  organization  of  our  courts;  (2)  the  want 
of  proper  organization  of  the  administrative  and  cleri- 
cal side  of  our  tribunals;  (3)  our  procedure;  (4)  the 
concurrent  jurisdiction  of  state  and  federal  courts; 
and  (5)  the  strong  tendency  of  our  law  to  local  par- 
ticularism.    Each  of  these  may  be  looked  at  briefly. 

(i)  Three  circumstances  determined  our  present 
American  judicial  organization:  (i)  The  organization 
of  English  courts  at  the  Revolution;  (2)  the  need  of 
a  rapid  making  over  of  English  common  law  and  legis- 
lation into  a  common  law  for  America  in  a  period 
when  little  could  be  achieved  in  such  a  field  by  legis- 
lation, and  hence  courts  alone  could  be  looked  to; 
and  (3)  the  demand  for  decentralizing  the  adminis- 
tration of  justice  and  bringing  justice  to  every  man's 
door  in  the  rural  American  community  of  the  first 
half  of  the  last  century.  The  result  was  a  system  of 
separate  courts  with  a  fixed  stafif,  not  available  in  any 
other  tribunal,  no  matter  how  great  the  arrears  in 
one  or  lack  of  business  in  another,  a  setting  up  of  a 
machine  for  developing  the  law  by  judicial  decision 
rather  than  one  for  the  adjudication  of  causes,  and  a 
system  of  specialized  local  courts  instead  of  specialist 
judges.  Thus  we  waste  judicial  power  in  the  United 
States  in  three  ways.  One  is  by  multiplication  of 
tribunals  with  hard  and  fast  personnel  and  hard  and 
fast  jurisdiction.  Another  is  by  the  vicious  practice 
of  rapid  rotation  which  prevails  in  so  many  jurisdic- 
tions, whereby  no  one  judge  acquires  a  thorough 
experience  of  any  one  class  of  business.  Thus  each 
spends  valuable  public  time  in  learning  the  art  of 
handling  special  classes  of  judicial  work  only  to  pass 
on  to  some  other  special  class  where  he  must  learn 
a  wholly  new  art.  Where  the  specialist  would  act  with 
assurance  and  decision,  one  who  comes  fresh  to  a 
special  field  of  judicial  administration  must  needs  pro- 
ceed painfully  and  cautiously.     Still  another  form  of 

14 


waste  is  the  treatment  of  controversies  piecemeal, 
part  in  one  court  or  proceeding  and  part  in  another, 
with  no  power  to  refer  all  the  proceedings  to  one  tri- 
bunal. Thus  conflicts  often  arise  which  set  court 
against  court,  although  both  are  set  up  to  the  same 
end.  And  if  conflict  does  not  ensue,  as,  for  instance, 
where  the  jurisdiction  of  equity  to  give  complete  re- 
lief may  be  invoked,  the  attempt  to  administer  justice 
in  detached  fragments,  even  if  more  or  less  successful, 
involves  delay,  expense  and  waste  of  judicial  time  in 
hearing  over  again  the  common  elements  in  the  con- 
troversy, already  heard  by  others,  but  necessary  to  an 
understanding  of  each  particular  phase.  These  de- 
fects are  more  acute  in  some  states  than  in  others. 
But  in  one  form  or  another  they  may  be  found  every- 
where. 

Effective  administration  of  justice  in.  the  urban 
communities  of  today  requires  a  unification  of  the 
judicial  system  whereby  the  whole  judicial  power  of 
the  state  shall  be  vested  in  one  organization,  of  which 
all  tribunals  shall  be  branches  or  departments  or  divi- 
sions. In  organizing  the  personnel  of  this  unified  judi- 
cial department,  the  cardinal  idea  should  be  to  per- 
mit the  entire  judicial  force  of  the  commonwealth  to 
be  employed  in  the  most  effective  manner  possible 
upon  the  whole  judicial  business  of  the  common- 
wealth, aiming  to  have  specialist  judges  rather  than 
■specialized  courts.  Multiplication  of  tribunals  is  the 
first  attempt  of  the  law  to  meet  the  demand  for 
specialization  and  division  of  labor.  Yet  it  is  at  best 
a  crude  device.  The  need  is  for  judges  who  are 
specialists  in  the  class  of  causes  with  which  they  have 
to  deal.  This  need  may  be  met  by  specialized  courts 
with  specialized  jurisdiction.  But  it  may  be  met,  also, 
by  a  unified  court  with  specialist  judges,  to  whom 
special  classes  of  litigation  are  assigned.  Undoubt- 
erlly  much  specialization  is  desirable  and  will  be  desir- 
able increasingly  in  the  future.  But  concurrent  juris- 
dictions, jurisdictional  lines  between  courts,  with  con- 
sequent litigation  over  the  forum  and   the  venue  at 

IS 


the  expense  of  the  merits,  and  judges  who  can  do  but 
one  thing,  no  matter  how  little  of  that  is  to  be  done 
nor  how  much  of  something  else,  are  not  the  way  to 
provide  therefor.  Rather  there  should  be  specialized 
judges.  As  cases  of  a  certain  class  become  numerous 
and  require  that  a  specialist  consider  them,  judges 
should  be  designated  from  the  staff  of  the  whole  court 
for  that  purpose  and  the  causes  should  be  assigned 
to  such  judges,  in  the  one  court  in  which  all  causes 
are  entered,  by  some  functionary,  whose  duty  it  is  to 
see  that  the  judicial  power  of  the  commonwealth  is 
fully  utilized  and  is  utilized  to  the  best  advantage. 

Some  one  high  official  of  the  court  should  be  charged 
with  supervision  of  the  judicial  business  of  the  whole 
court,  and  he  should  be  responsible  for  failure  to  util- 
ize the  judicial  power  of  the  commonwealth  effective- 
ly. He  should  have  the  power  to  superintend  the  cal- 
endars of  the  different  branches  and  divisions  and  to 
make  such  classifications  and  distributions  of  the  busi- 
ness in  each  branch  or  division  as  experience  shows 
to  be  suited  to  advance  its  work.  He  should  have 
power  to  make  reassignments  of  judges  or  temporary 
assignments  to  particular  branches  or  divisions  or  lo- 
calities as  the  state  of  judicial  business,  vacancies  in 
office,  illness  of  judges,  or  casualties  may  require.  He 
should  have  the  power,  according  to  general  rules, 
framed  by  the  court  and  improved  as  experience  dic- 
tates, to  transfer  or  specially  assign  causes  or  proceed- 
ings for  hearing  or  disposition  according  to  the  con- 
dition of  the  calendars.  He  should  be  responsible  to 
the  people  for  insuring  that  the  whole  judicial  power 
of  the  commonwealth  is  fully  and  effectively  employed 
upon  all  the  business  of  the  court.  Moreover,  under  the 
general  superintendency  of  this  head  of  the  court, 
there  should  be  a  like  judicial  officer,  since  no  clerk 
should  be  given  such  powers,  for  each  branch  and  divi- 
sion, and  where  there  are  large  cities,  for  each  locality. 
This  officer  should  have  similar  powers  with  respect 
to  the  branch,  division  or  locality  of  which  he  is  the 
chief  or  presiding  judge,  and  should  be  responsible  to 

16 


the  chief  of  the  whole  court  for  the  classification 
and  distribution  of  its  business  and  effective  disposi- 
tion of  the  causes  assigned  to  it.  Concentration  of 
responsibility  in  this  way  should  be  a  sufficient  safe- 
guard against  abuse  of  these  offices. 

(ii)   Organization  of  the  administrative  and  clerical 
side  of  the  courts  is  of  nearly  equal  importance.    Leg- 
islation ought  not  to  prescribe  the  details  of  this  or- 
ganization.    So  far  as  possible,  the  court  should  be 
allowed  to  settle  them  by  rules  devised,  amended  or 
abrogated  as  experience  dictates.     But,  above  all,  the 
court  should  be  given  control  of  the  clerical  and  ad- 
ministrative force  through  a  chief  clerk,  responsible  to 
the  court   for  the  conduct  of  this  part  of   its  work. 
We  have  hampered  the  administration  of  justice  by 
the  extreme  to  which  we  have  carried  ,the  decentraliza- 
tion of  courts.     In  many  jurisdictions  the  clerks  are 
mdependent  officers,  over  whom  the  courts  have  little 
or   no   control.     Even   clerks    of    supreme   and   inter- 
mediate appellate  tribunals  are  sometimes  elective  offi- 
cers.    Nearly  everywhere  the   clerk  of  the  court   of 
record  of  general  jurisdiction  in  each  county  is  elected. 
Thus,   he   is  under  no  administrative   control   and   is 
largely  free  from  judicial  control.     Each  clerk's  office 
is  independent  of  every  other.     It  is  no  one's  duty  to 
study   the  system,   suggest  improvements,   or  enforce 
them  when  made.     What  responsibility  will  do  in  this 
connection,   when  joined   to   corresponding  power,   is 
shown  in  the  Municipal  Court  of  Chicago,  where  the 
system  of  abbreviated  records  is  said  to  have  effected 
a  saving  of  $200,000  a  year.     Moreover,  if  courts  are 
to  do  the  work  demanded  of  the  law  in  large  cities  of 
diverse  population  and  in  industrial  communities,  they 
must  develop  much  greater  administrative  efficiency, 
and  must  be  able  to  compete  in  this  respect  with  ad- 
ministrative boards  and  commissions.     In  the  conven- 
tional American  judicial  organization,  the  administra- 
tive officers  of  importance  arc  elected  independently, 
have  sole  control  of  their  offices,  and  are  responsible 
only   to   the  electorate.      Tn   prarlicc   (his    division   of 

17 


responsibility  means  no  responsibility.  Hence  very 
little  progress  has  been  made  toward  efficiency  upon  a 
side  of  judicial  administration  where  most  of  the  cost 
of  litigation  is  incurred.  Statistics  in  the  last  report 
of  the  Municipal  Court  of  Chicago  show  that  the  ad- 
ministrative and  clerical  work  of  the  court,  with  all 
the  savings  which  have  been  effected,  still  costs  more 
for  each  case  than  the  purely  judicial  work. 

(iii)  As  to  procedure,  two  preliminary  points 
should  be  emphasized.  First,  procedural  reform 
is  not  a  panacea.  Not  only  are  there  several  other 
problems  connected  with  the  administration  of  jus- 
tice in  America  which  are  of  equal  or  even  greater 
importance,  but  three  of  them  have  a  direct  and  im- 
mediate relation  to  procedural  reform,  namely,  the 
personnel,  mode  of  choice  and  tenure  of  judges,  the 
organization  of  courts,  and,  in  consequence,  of  judicial 
business,  and  the  organization,  training  and  traditions 
of  the  bar.  Except  and  until  these  three  matters  are 
attended  to,  the  best  practice  act  the  wit  of  man  can 
devise  will  fail  of  much  effect.  If  they  are  attended 
to,  an  inferior  practice  act  may  be  made  very  toler- 
able. Secondly,  there  is  the  greatest  diversity  in  pro- 
cedure in  the  different  states.  Jurisdictions  whose 
procedure  is  admirable  in  some  respects  are  very  back- 
ward in  other  respects.  But  few  generalizations  are 
possible.  Much  misunderstanding  has  arisen  from  as- 
suming without  warrant,  that  particular  abuses  which 
obtain  in  a  single  jurisdiction  are  typical  of  the  proce- 
dure of  all  states.  Sometimes  they  are  anomalous 
even  in  the  particular  state.  In  other  words,  while 
there  are  general  evils  which  exist  throughout  the 
United  States,  the  problem  of  procedural  reform  is 
largely  local,  and  must  be  studied  specially  with  refer- 
ence to  the  conditions  that  obtain  in  each  state. 

There  appear  to  be  ten  respects  in  which  procedure 
generally,  or  in  a  very  large  number  of  states,  con- 
tributes to  inefficiency  in  the  administration  of  justice, 
(a)  In  most  jurisdictions  there  is  too  much  legislation 
as  to  the  details  of  procedure,  so  that  the  details  are 

18 


too  hard  and  fast,  and  it  is  too  difficult  to  alter  them 
in  case  they  work  badly.  Legislation  should  deal  only 
with  the  general  features  of  procedure,  prescribing  the 
general  lines  to  be  followed,  but  leaving  details  to  be 
settled  by  rules  of  court,  which  may  be  changed  as 
actual  experience  of  their  application  and  operation 
dictates.  Practice  acts  of  this  type  have  been  adopted 
in  New  Jersey  and  in  Colorado,  and  a  similar  meas- 
ure, fathered  by  the  American  Bar  Association,  is  now 
pending  in  Congress.  In  contrast  with  these  simple 
statutes,  the  New  York  code  of  civil  procedure,  with 
over  3,400  sections,  prevents  the  courts  from  dealing 
effectively  v.-ith  questions  of  practice,  invites  constant 
legislative  amendment  in  matters  of  detail,  and  fills 
the  reports  of  that  state  with  decisions  upon  proce- 
dure. 

(b)   Taking  the  country  as  a  whole,  there  is  not 
only  too  much  of  hard  and  fast  rule  in  procedure  but 
the  rules  are  treated  too  much  as  giving  procedural 
rights    to     parties    which   they   are    entitled    to   vin- 
dicate although   their  substantive  rights  may  not  be 
affected.    Except  as  they  exist  for  the  saving  of  public 
time  and  maintenance  of  the  dignity  of  tribunals,  so 
that  the  parties  should  not  be  able  to  insist  as  of  right 
upon  enforcement  of  them,  rules  of  procedure  should 
exist  only  to  secure  to  all  parties  a  fair  opportunity 
to  meet  the  case  against  them  and  a  full  opportunity 
.to  present  their  own  case;  and  nothing  should  depend 
on  or  be  obtainable  through  them  except  the  securing 
of  such  opportunity.     In  case  of  a  variance,  the  in- 
quiry should  be,  did  the  party  who  complained  ask  for 
time  or  opportunity  to  meet  the   point  of  which   he 
was  not  fairly  apprised  and  for  which  he  was  not  pre- 
pared, and  was  he  given  a  fair  chance  to  meet  it? 
Where  no  other  advantage  could  be  had  than  securing 
a  fair  opportunity  to  meet  proof  adduced  without  fair 
notice,    very    few    complaints    of    variance    would    be 
made.     What  this  would  mean  may  be  understood  by 
turning  to  a  paper  in  one  of  our  legal  periodicals  on 
"Taking  advantage  of  variance  on  appeal,"  in  which 

19 


it  took  twenty  pages  and  citation  of  338  decisions  of 
the  courts  of  one  state  to  set  out  the  mechanics  of 
the  subject  in  that  one  state.  An  American  observer 
commented  recently  upon  the  difference  between  the 
American  and  the  British  Consular  Courts  in  China, 
as  follows :  "In  the  British  court  the  direct  dive  to  the 
gist  of  the  matter  before  the  court,  and,  the  intoler- 
ance of  technicalities  is  what  astounds  and  impresses 
the  American  lawyer.  The  wearying,  formal,  per- 
functory round  of  demurrers  and  motions  is  entirely 
missing.  Mere  technical  objections  are  easily  and  im- 
patiently waved  aside,  and  exceptions  to  pleadings 
right  speedily  cured  wherever  possible  without  post- 
ponement. Hence,  being  unsuccessful  in  achieving 
any  advantage,  such  objections  tend  to  lapse  into  dis- 
use." In  other  words,  rules  meant  to  save  time  and 
advance  the  business  of  the  court  are  not  permitted  to 
waste  time  and  obstruct  the  business  of  the  court  by 
becoming  the  subject  of  contest  between  the  parties, 
and  rules  meant  to  protect  the  parties  may  be  availed 
of  to  achieve  that  end  and  for  no  other  purpose.  Be- 
ing of  no  avail  as  substitutes  for  substantive  points, 
tliey  tend  to  lapse  into  disuse.  This  is  coming  to  pass 
with  us  also  as  our  courts  year  by  year  give  less  weight 
to  points  of  practice. 

(c)  There  is  too  much  of  what  may  be  called  rec- 
ord-worship; too  much  attention  to  the  common-law 
record  as  an  end  in  itself.  The  function  of  a  judicial 
record  should  be  to  preserve  a  permanent  memorial 
of  what  has  been  done  in  a  cause;  the  court  should 
be  able  at  all  stages  to  try  the  case,  not  the  record, 
and,  except  as  a  record  of  what  has  been  done  may 
be  necessary  to  protect  substantive  rights  of  parties 
as  the  suit  progresses,  the  sole  concern  of  the  court 
with  respect  to  the  record  should  be  to  see  to  it  that 
at  the  termination  of  the  litigation  it  records  the 
judgment  rendered  and  the  causes  of  action  and  de- 
fenses adjudicated.  A  single  instance  may  illustrate 
the  delay,  expense  and  confusion  which  comes  from 
trying  records  rather  than  cases.     In   1881  a  United 

20 


States  Circuit  Court  had  before  it  an  action  of  eject- 
ment in  which  the  plaintiff's  pleading  set  up  title  un- 
der the  children  of  a  testator  and  set  forth  a  gift  in 
the  will  to  the  widow  so  long  as  she  remained  a  widow, 
with  a  gift  to  the  children  in  case  she  remarried. 
The  defendants  claimed  under  a  conveyance  of  the 
fee  by  the  widow.  Upon  demurrer,  the  Circuit  Court 
held  that  the  plaintiff's  pleading  disclosed  a  power  in 
the  widow  to  convey  the  fee  prior  to  her  remarriage, 
and  rendered  judgment  for  the  defendant.  The  rec- 
ord was  taken  on  error  to  the  Supreme  Court  of  the 
United  States,  which  held,  on  the  provisions  of  the 
will  set  forth  in  the  pleadings,  that  the  wife  took  a 
life  estate  only,  with  no  power  of  conveying  a  fee,  and 
reversed  the  judgment.  Thereupon  suit  in  equity  was 
brought  in  the  state  court  by  a  large  number  of  per- 
sons claiming  under  the  conveyances  by  the  widow, 
setting  up  a  conspiracy  to  get  the  litigation  over  the 
title  into  the  federal  court  by  fraud,  praying  an  in- 
junction against  numerous  suits  in  the  federal  court, 
and  asking  to  have  the  title  quieted  in  the  plaintiffs. 
This  suit  was  removed  to  the  United  States  Circuit 
Court,  and  a  motion  to  remand  was  refused.  On 
error  in  the  Supreme  Court  of  the  United  States, 
however,  that  order  was  reversed,  and  it  was  directed 
that  the  cause  be  remanded  to  the  state  court.  The 
suit  in  equity  now  went  forward  in  the  state  court,  the 
whole  case  was  presented,  and  the  court,  having  the 
whole  will  and  all  the  extrinsic  evidence  bearing  upon 
its  construction  before  it,  decided  that  upon  a  proper 
construction,  the  widow  took  a  power  to  convey  in  fee. 
This  construction  was  affirmed  on  appeal  by  the  su- 
preme court  of  the  state.  In  reaching  its  conclusion, 
the  latter  court  was  governed  largely  by  evidence  in 
the  cause  showing  the  situation  of  fact  to  which  the 
will  was  to  be  applied,  particularly  the  number  of  the 
objects  of  the  testator's  bounty,  their  means  of  sup- 
port, actual  and  prospective,  when  he  made  the  will, 
and  the  obvious  impossibility  of  his  family  maintain- 
ing itself  after  his  death  unless  the  fee  of  the  land 

21 


could  be   disposed  of.     The   federal   supreme  court 
having  tried  the  record  and  the  state  supreme  court 
the  case,  naturally  enough  with  divergent  results,  a 
race  for  the  federal  court  began  on  the  part  of  gran- 
tees of  the  children.     Litigation  ensued,  also,  to  deter- 
mine who  were  entitled  to  the  benefit  of  the  decree  in 
the  state  court,  as  a  result  of  which  some  seven  gran- 
tees were  excluded.     Next,  the  decree  of   the  state 
court  was  taken  to  the  supreme  court  of  the  United 
States  on  error.     But  the  court  could  only  try  the 
record.     It  could  not,  at  this  stage,  determine  whether, 
with  the  whole  case  before  it,  its  former  pronounce- 
ment on  the  demurrer  gave  a  sound  construction  of 
the  will.     It  could  only  say  that  no  federal  question 
was  involved  in  the  record.     Moreover,  as  to  a  pur- 
chaser, claiming  under  the  children,  who  had  obtained 
judgments  in  the  federal  circuit  court,  the  cause  re- 
mained open.     Hence  a  further  suit  in  equity  in  the 
state  court  against  this  purchaser  became  necessary, 
and   ejectment  actions   against   grantees   of   the   pur- 
chaser, in  which  they  claimed  under  his  judgments, 
ensued.    At  length,  in  an  action  of  ejectment  in  the 
federal  circuit  court,   in  order  to  put  the  matter  to 
rest,  counsel  agreed  upon  a  special  verdict  presenting 
the  case.     Judgment  was   rendered,  error  was  taken 
in  the  circuit  court  of  appeals,  and  that  court  certified 
the  cause  to  the  Supreme  Court  of  the  United  States. 
But  that  court,  upon  the  record,  found  itself  still  pre- 
cluded   from    deciding    the    case.        The    pleadings, 
through  a  general  denial,  put  in  issue  the  citizenship 
of  the  plaintifi^,  and  the  special  verdict  was  silent  on 
that  point.     Hence,  although  no  one  questioned  that 
his  citizenship  was  in  fact  what  he  alleged  it  to  be, 
a  new  trial  was  necessary  to  save  the  form  of  the 
record.     Accordingly,   the   farce   of   a  new  trial  was 
gone  through  with,  a  new  special  verdict  was  drawn 
up,  a  new  judgment  was  rendered,  error  was  taken 
anew    in    the    circuit    court   of   appeals,     the     cause 
was  certified  anew  to  the  Supreme  Court  of  the  United 
States,  and  that  court  at  last,  after  thirteen  years  of 

22 


litigation,  having  a  record  before  it  which  allowed 
it  to  decide  the  case,  held  that  the  state  supreme  court 
was  right  and  that  the  widow  took  a  power  of  disposi- 
tion of  the  fee.  Thus  at  the  end  of  thirteen  years, 
during  which  time  the  litigation  had  been  five  times 
in  the  Supreme  Court  of  the  United  States,  twice  in 
the  circuit  court  of  appeals,  and  four  times  in  the 
state  supreme  court,  the  construction  of  the  will  was 
determined.  But  in  the  meantime  many  whose  purses 
were  not  long  enough  to  keep  up  the  fight  yielded  to 
judgments  in  ejectment  in  the  federal  court  based  on 
the  first  opinion  of  the  federal  supreme  court,  and 
sued  their  grantors  upon  covenants  of  warranty.  As 
these  grantors  had  not  felt  able  to  continue  the  litiga- 
tion when  notified  to  do  so,  they  were  compelled  to 
pay  damages,  although,  in  the  event,  they  had  con- 
veyed a  good  title.  Such  are  the  results  of  making  of 
the  record  an  end,  rather  than  a  means. 

(d)   Pleadings  preserve  too  many  characteristics  of 
the   time   when   mechanical   modes   of   trial    required 
sharp,  formal  issues.     The  oflfice  of  pleadings  should 
be  to  give  notice  to  the  respective  parties  of  the  claims, 
defenses  and  cross  demands  asserted  by  their  adver- 
saries ;  wherever  that  office  may  be  performed  suffi- 
ciently without  pleadings,  pleading  should  be  unneces- 
sary, and  where  pleadings  are  required,  the  pleader 
should  not  be  held  to  state  all  the  legal  elements  of 
claim,   defense  or  cross   demand,   but  merely  to   ap- 
prise his  adversary  fairly  of  what  such  claim,  defense 
or  cross  demand  is  to  be.     Pleadings   for  any  other 
purposes  than  the   two   named  are  now   done   away 
with   in   proceedings  before   commissions,    in   probate 
causes  and  the  allowance  of  claims  against  estates,  and 
in    the    far    western    states    in    litigation    over    water 
rights.     Happily  the  tendency  to  treat   formal  plead- 
ings at  law  and   in  equity  more  liberally  has  become 
so  general  in  the  past  few  years  that  it  is  enough  to 
say  that  potential  pitfalls  still  cixst  in  which  the  un- 
wary are  sometimes  caught  with  the  result  that  jus- 
tice is  deferred.     Thus,  in  one  of  our  states  during 

23 


the  present  year,  judgment  in  a  proceeding  to  set  aside 
assessments  for  paving  was  reversed  because  the 
pleading  which  set  up  fraud  on  the  part  of  the  city 
council  in  accepting  the  paving  did  not  state  the  facts 
constituting  fraud. 

(e)  There  is  too  much  throwing  of  causes  out  of 
court  when  a  transfer  or  a  change  of  procedural  form 
would  save  the  proceedings  already  had.  No  cause, 
proceeding  or  appeal  should  be  dismissed,  rejected  or 
thrown  out  solely  because  brought  in  or  taken  to  the 
wrong  court  or  wrong  venue,  but  if  there  is  one  where 
it  may  be  brought  or  prosecuted,  it  should  be  trans- 
ferred thereto  and  go  on  there,  all  prior  proceedings 
being  saved.  This  practice  now  obtains  by  statute  in 
an  increasing  number  of  states.  How  the  old  practice 
operates  may  be  illustrated  by  a  case  decided  in  Janu- 
ary of  the  present  year  in  one  of  our  larger  states. 
In  this  case  action  was  brought  in  1912  for  $350  upon 
a  contract  for  the  purchase  of  a  piano.  After  trial 
and  verdict  for  $167,  the  judgment  was  reversed,  with 
directions  to  dismiss  the  cause,  because  it, was  brought 
in  the  wrong  county.  Thus  two  years  of  litigation 
have  been  wholly  in  vain. 

(f)  There  is  too  much  piecemeal  disposition  of  con- 
troversies. The  equitable  principle  of  complete  dis- 
position of  the  entire  controversy  between  the  parties 
should  be  extended  to  its  full  content  and  applied  to 
every  type  of  proceeding.  For  example :  In  a 
western  state,  a  long  litigation  began  with  the  issuance 
of  a  writ  of  mandamus  in  July,  1899,  by  means  of 
which  the  defendants  obtained  $10,000,  held  by  the 
promoters  of  a  corporation.  The  order  allowing  the 
writ  was  then  reversed  by  the  supreme  court  on  the 
ground  that  mandamus  was  not  the  proper  remedy. 
No  question  as  to  whether  the  defendants  were  en- 
titled to  the  money  could  be  passed  on,  so  the  cause 
was  remanded.  In  the  trial  court  the  cause  was  dis- 
missed by  the  relators;  but  afterwards,  upon  motion 
of  the  trustee  in  bankruptcy  of  the  corporation,  the 
dismissal  was  set  aside,  and  the  relators  were  ordered 

24 


to  show  cause  why  there  should  not  be  restitution  of 
the  money.  In  response  to  this  order,  they  appeared 
specially  and  objected  to  the  jurisdiction  of  the  court, 
and  their  objections  were  sustained.  This  last  ruling 
was  then  reversed  by  the  supreme  court,  still  passing 
solely  on  questions  of  practice,  and  the  cause  was 
again  remanded.  Thereupon  the  defendants  brought 
an  independent  suit  to  enjoin  further  proceedings  un- 
der the  order  to  show  cause  and  to  establish  an  equi- 
table defense.  The  trial  court  granted  the  injunction, 
but  on  mandamus  proceedings  in  the  supreme  court,  it 
was  ordered  that  the  injunction  be  vacated.  The  origi- 
nal case  was  now  heard  on  the  order  to  show  cause, 
and  restitution  was  ordered.  On  appeal,  however,  the 
supreme  court  reversed  the  order  and  discharged  the 
order  to  show  cause.  But  it  still  refused  to  foreclose 
the  controversy,  saying:  'Tt  is  not  to  be  supposed  that 
the  refusal  of  this  order  in  these  proceedings  would 
constitute  a  bar  to  a  prosecution  of  the  claim  of  the 
trustee  against  the  defendants  in  a  suitable  action 
brought  for  that  purpose."  Accordingly  the  trustee 
sued,  his  petition  was  demurred  to,  judgment  went 
against  him,  and  on  the  fifth  determination  in  the 
supreme  court,  in  September,  1905,  after  six  years 
of  litigation  at  the  expense  of  the  assets  of  an  insol- 
vent company,  the  judgment  was  affirmed. 

(g)  Our  procedure  at  law  involves  too  many  trials 
and  too  much  retrial.  So  far  as  possible,  all  questions 
of  fact  should  be  disposed  of  finally  upon  one  trial. 
When  a  new  trial  is  granted,  it  should  be  only  a  new 
trial  of  the  question  or  questions  with  respect  to  which 
the  verdict  or  finding  is  wrong,  if  separable,  and  trial 
courts  should  have  the  power  and  the  duty  of  submit- 
ting causes  and  taking  verdicts  in  the  alternative,  so 
that  judgment  may  be  rendered  upon  the  one  which 
the  ultimate  decision  as  to  the  question  of  law  involved 
may  require.  In  a  recent  case  some  boys  were  en- 
gaged in  harassing  a  Chinaman.  He  turned  on  them 
with  a  hatchet,  and  one  in  order  to  escape,  ran  in 
front  of  a  car  and  was  killed.     The  question  of  law 

25 


whether  what  the  boy  did  in  fright  under  such  cir- 
cumstances amounted  to  contributory  negligence  was 
decisive.  Under  the  practice  which  prevails  in  the 
federal  courts  and  in  the  majority  of  state  courts,  the 
trial  judge  would  be  required  to  rule  one  way  or 
the  other  on  this  question.  If  he  held  there  was 
contributory  negligence,  he  would  direct  a  ver- 
dict for  the  defendant.  Then  if  the  reviewing  court 
held  otherwise,  a  new  trial  would  be  necessary  after 
a  considerable  lapse  of  time  when  the  testimony  was  no 
longer  fresh.  If  he  held  there  was  not  contributory 
negligence,  the  cause  would  go  on  and  very  likely  re- 
sult in  a  verdict  for  the  plaintiff.  Upon  review  of 
this,  the  court  of  appellate  jurisdiction  could  only 
order  a  new  trial,  and  on  this  new  trial  in  many  juris- 
dictions it  would  be  possible  for  the  plaintiff's  evi- 
dence to  be  quite  different  as  to  the  circumstances  of 
the  accident,  and  very  likely  the  case  would  go  to  the 
court  of  review  once  more  to  determine  whether  upon 
the  new  evidence  the  verdict  could  stand.  In  some 
jurisdictions  causes  have  been  tried  as  many  as  eight 
times  successively  in  this  way.  Over  and  above  the 
expense  and  delay  involved,  the  invitation  to  perjury 
is  obvious.  In  a  number  of  jurisdictions,  including 
the  one  in  which  the  cause  above  referred  to  was 
decided,  it  is  possible  in  such  a  case  for  the  trial  judge 
to  submit  the  questions  of  fact  to  the  jury,  reserving 
the  question  of  law,  and  leave  it  to  the  higher  court 
to  say  whether  upon  the  facts  found  by  the  jury 
there  shall  be  judgment  for  the  damages  found,  if 
any,  or  a  final  judgment  for  the  defendant. 

(h)  In  most  jurisdictions  there  is  too  little  power 
of  guidance  of  the  jury  by  the  court.  Juries  are  left 
at  large  to  be  swayed  by  advocacy  with  no  judicial 
corrective.  It  is  often  said  that  we  cannot  trust  our 
judges  to  exercise  the  common-law  power  of  advising 
juries.  But  if  we  cannot  provide  a  type  of  judge  ade- 
quate to  the  demands  of  the  judicial  ofifice,  we  must 
not  expect  the  administration  of  justice  to  be  efficient. 

26 


Our  sole  resource  for  correcting  bad  verdicts  is  what 
has  been  called  "the  monstrous  penalty  of  a  new 
trial."  The  excessive  number  of  new  trials  with 
resulting  delay  and  expense,  which  have  disgraced 
American  justice  in  the  immediate  past,  is  chiefly 
attributable  to  the  want  of  a  proper  check  upon  juries 
at  the  trial,  compelling  our  courts  of  review  to  vin- 
dicate the  law  and  insure  justice  after  verdict  by  the 
only  means  in  their  power.  This  is  illustrated  especial- 
ly in  criminal  causes,  wherein  it  is  a  constant  practice 
in  many  states  to  reverse  convictions  because  of  unfair 
and  improper  argument  by  the  prosecuting  officer.  In 
jurisdictions  where  the  trial  court  may  deal  w^ith  such 
argument  effectively  in  an  oral  charge  such  reversals 
are  unknown.  Again  one  of  the  most  difficult  prob- 
lems before  those  who  seek  to  reform  procedure  to- 
day is  the  matter  of  expert  evidence.  But  there  is 
general  concurrence  among  those  who  have  studied  the 
subject  in  the  view  that  if  trial  judges  were  given 
the  power  to  deal  with  expert  evidence  effectively  in 
the  charge  to  the  jury  and  if  they  were  so  selected  as 
to  put  men  of  proper  caliber  upon  the  bench,  the  ques- 
tion would  largely  solve  itself. 

(i)  It  is  probable  that  we  make  too  much  use  of 
the  jury  as  a  tribunal  for  ordinary  civil  causes.  The 
delay  and  expense  involved  in  jury  trials  are  very 
great,  and  wherever  the  volume  of  litigation  is  large 
and  courts  are  in  session  continually,  service  upon 
juries  has  become  a  grave  burden  upon  the  citizen. 
It  is  worthy  of  consideration  whether  there  are  advan- 
tages in  jury  trial  of  ordinary  causes  upon  debt  or 
contract  and  commercial  cases  to  compensate  for  the 
expenditure  of  time  and  money  which  such  trial  re- 
quires. Even  in  actions  upon  tort,  now  that  work- 
men's compensation  acts  are  removing  from  the  forum 
cases  in  which  plaintiffs  looked  to  juries  to  mitigate 
the  law,  it  may  be  doubted  whether  jury  trial  should 
be  used  so  widely.  Assault  and  battery,  malicious 
prosecution,  slander  and  libels  and  breach  of  promise, 

27 


the  cases  to  which  it  is  coming  to  be  restricted  in 
England,  seem  the  civil  cases  best  suited  to  this  mode 
of  trial. 

(j)  In  most  jurisdictions  also  there  is  too  much 
appellate  procedure.  There  is  no  reason  why  appellate 
procedure  should  be  involved  or  technical.  The  ap- 
peal should  be  treated  as  a  motion  for  a  rehearing  or 
for  new  trial,  or  for  vacation  or  modification  of  the 
judgment  or  order  complained  of  before  another 
court,  and  the  procedure  should  be  as  simple  as  that 
upon  motion.  A  few  years  ago,  a  computation  made 
from  the  current  volumes  of  the  national  reporter 
system  showed  that  four  per  cent,  of  the  points  deci- 
ded by  American  appellate  courts  were  points  of  appel- 
late procedure.  Where  a  simple  appellate  practice  ob- 
tains as  in  England,  such  questions  are  substantially 
unknown. 

(iv)  In  those  parts  of  the  country  in  which  resort 
to  the  federal  courts  in  case  of  diversity  of  citizen- 
ship is  common  the  concurrent  jurisdiction  of  state 
and  federal  courts  on  the  ground  of  diverse  citizenship 
often  causes  much  delay,  expense,  and  uncertainty. 
Causes  often  hang  in  the  air  between  the  two  jurisdic- 
tions, and  it  sometimes  happens  that  after  they  have 
been  taken  to  the  federal  court  and  tried  there,  a  re- 
mand becomes  necessary,  or,  if  brought  in  that  court 
and  tried,  a  defect  of  jurisdiction  is  discovered,  and 
expensive  proceedings  go  for  nought.  Moreover,  the 
differences  in  the  view  which  state  and  federal  courts 
respectively  take  as  to  the  law  applicable  to  the  same 
case  result  in  irritation  which  has  somewhat  impaired 
the  usefulness  of  the  federal  courts  in  some  localities. 
In  consequence  foreign  insurance  companies  are  com- 
ing to  be  prohibited  from  bringing  causes  in  or  remov- 
ing them  to  the  federal  courts  by  legislation  in  a  con- 
tinually increasing  number  of  states.  A  situation  in 
which  a  policy  on  the  same  property,  destroyed  by  the 
same  fire  would  be  dealt  with  in  one  way  if  the  in- 
surance amounted  to  more  than  two  thousand  dollars 
and   in  another  if   it  was  less  than  that   sum,  or  in 

28 


one  way  if  issued  by  a  domestic  company  and  in 
another  if  issued  by  a  company  chartered  by  another 
state,  proved  quite  intolerable. 

(v)  A  spirit  of  provincialism  or  particularism  in 
our  law  is  also  a  general  cause  of  failure  to  achieve 
the  best  possible  results  in  judicial  administration. 
We  foster  local  peculiarities  and  even  anomalies  in 
substantive  law  and  in  procedure  as  if  they  had  some 
intrinsic  importance.  So  little  does  our  legal  tradition 
value  universality,  that  our  uniform  commercial  acts 
are  in  some  danger  of  being  interpreted  differently 
in  different  states. 

B.  Three  causes  of  local  operation  remain  to  be  no- 
ticed. 

(i)  Aletropolitan  cities  raise  special  and  difficult 
problems.  In  a  heterogeneous  community,  containing 
elements  ignorant  of  our  institutions,  on  the  one  hand 
suspicious  of  authority  and  of  magistrates,  and  on  the 
other  hand  unable  to  understand  our  tenderness  of  in- 
dividual liberty,  the  legal  and  judicial  machinery  de- 
vised for  homogeneous,  rural,  agricultural  communi- 
ties of  the  first  half  of  the  nineteenth  century  neces- 
sarily breaks  down.  In  too  many  jurisdictions  a  hard 
and  fast  system  of  courts,  uniform  throughout  the 
state,  is  prescribed  by  the  constitution,  so  that  it  is  not 
possible  to  adjust  the  administration  of  justice  in  large 
cities  to  this  condition. 

(ii)  In  many  parts  of  the  country  no  adequate  pro- 
vision exists  for  disposition  of  so-called  petty  causes 
in  large  cities.  The  setting  up  of  municipal  courts, 
with  a  higher  type  of  judge  and  a  central  organiza- 
tion is  remedying  this  condition.  But  except  where 
such  courts  exist,  in  petty  causes,  that  is  with  respect 
to  the  everyday  rights  and  wrongs  of  the  great  ma- 
jority of  an  urban  community,  the  machinery  by 
which  rights  are  secured  practically  defeats  rights  by 
making  it  impracticable  to  assert  them  when  infringed. 
Municipal  courts  such  as  those  of  Chicago  and  of 
Qeveland   indicate   the   way   in   which   this   condition 

29 


may  be  met  until  a  unification  of  the  entire  judicial 
system  is  effected. 

(iii)  In  some  jurisdictions  the  undue  regard  of  a 
pioneer  community  for  the  interests  of  debtors,  who 
had  removed  to  the  frontier  to  begin  life  anew,  led 
to  legal  institutions  and  procedural  methods  intended 
to  obstruct  the  collection  of  debts  and  the  realization 
of  legal  claims.  There  is  evidence  that  this  tendency 
to  favor  debtors,  which  belongs  to  a  past  condition 
of  the  jurisdictions  in  question,  has  been  turned  to 
account  by  a  class  of  habitual  defendants  of  quite  an- 
other type.  For  example,  it  has  been  charged  re- 
peatedly that  in  one  state,  formerly  representative  of 
the  frontier  but  now  containing  two  large  cities,  rules 
of  practice  designed  to  hold  off  the  non-resident  credi- 
tor have  come  to  be  used  by  the  traction  companies 
to  defeat  just  claims  for  personal  injuries. 

III.  The  causes  of  inefificiency  in  enforcement  as 
distinguished  from  application  of  the  law,  may  also  be 
classified  as  general  causes  and  local  causes. 

A.  Four  general  causes  are  noteworthy:  (i)  Want 
of  proper  coordination  between  law  and  administra- 
tion; (ii)  the  breakdow^n  of  the  common-law  polity 
of  individual  initiative  in  enforcement;  (iii)  the  heavy 
burden  imposed  upon  law  in  that  we  call  on  it  to  do 
what  was  formerly  achieved  through  the  church  and 
the  home,  and  so  demand  that  it  do  more  than  can  be 
done  through  legal  machinery;  (iv)  divergence  of 
class  interests  in  a  community  no  longer  homogeneous, 
often  leading  to  legislation  in  the  interest  of  a  class, 
enforcement  whereof  is  opposed  or  resisted  by  another 
class,  with  the  community  at  large,  as  like  as  not, 
quite  indifferent;  and  (v)  a  failure  of  popular  interest 
in  justice,  so  that,  just  as  our  machinery  of  primaries 
and  elections  does  not  always  produce  the  best  results 
of  which  it  is  capable,  because  citizens  neglect  to  go 
to  the  polls,  our  judicial  machinery  does  not  always 
work  as  well  as  it  might  because  they  shirk  or  evade 
jury  service  and  do  not  insist  actively  upon  mainte- 
nance of  the  right  at  whatever  cost.    Our  Anglo-Ameri- 


?n 


can  legal  system  postulates  an  active  popular  interest 
in  justice.  In  communities  which  are  too  busy  to  take 
an  interest  in  the  maintenance  of  right  through  law, 
or  too  heterogeneous  to  have  reasonably  fixed  and 
generally  accepted  notions  of  justice,  such  a  system 
will  not  operate  effectively. 

B.  Local  causes.  Two  causes  of  inefficiency 
in  enforcement  of  law  are  of  local  operation  in  many 
of  our  jurisdictions. 

(i)  One  is  diversity  of  interests  in  different  parts 
of  the  same  state  which  lead  to  laws  imposed  by  one 
section  on  another  and  to  resistance  of  their  enforce- 
ment by  the  latter. 

(ii)  A  second  is  the  close  contact  of  criminal  law 
and  its  enforcement  with  politics.  To  some  extent  this 
operates  everywhere.  There  is  little  danger  of  politi- 
cal oppression  through  civil  litigation.  There  is  con- 
stant fear  of  political  oppression  through  the  criminal 
law.  Not  only  is  one  class  suspicious  of  attempts  by 
another  to  force  its  ideas  on  the  community  under 
penalty  of  prosecution  but  the  power  of  a  majority  to 
visit  with  punishment  practices  which  an  active  minor- 
ity consider  in  no  wise  objectionable  is  liable  to  abuse 
and  whether  rightly  or  wrongly  used  puts  a  strain 
upon  criminal  law  and  administration.  Besides  the 
close  relation  of  administration  of  the  criminal  law 
to  politics  permits  public  prosecutors  when  the  public 
conscience  is  active  to  be  spectacular  at  the  expense 
of  efficiency,  and  when  it  is  sluggish  to  be  lax  for  fear 
of  offending  interests.  These  are  doubtless  to  some 
extent  inherent  difficulties  in  the  administration  of 
punitive  justice  growing  out  of  the.  inevitable  relation 
between  enforcement  of  the  criminal  law  and  politics. 
There  is  much  evidence,  however,  that  the  influence  of 
politics  upon  the  enforcement  of  the  law  by  public 
prosecutors  often  goes  much  beyond  the  inevitable 
minimum.  The  same  considerations  that  call  for  civil 
service  with  respect  to  administrative  officers  apply 
also  to  the  staff  of  our  prosecuting  officers  in  large 

31 


cities  where  a  considerable  number  of  subordinates  is 
required. 

Many  of  the  stock  complaints  with  reference  to  the 
administration  of  criminal  justice  in  the  United  States 
grow  out  of  results  of  this  connection  between  the  en- 
forcement of  the  criminal  law  and  politics.  Pressure 
is  put  upon  elective  prosecutors  tq  make  a  record  of 
convictions.  The  machinery  of  criminal  procedure 
designed  to  protect  the  accused  does  not  lend  itself 
to  the  making  of  such  a  record.  Hence  the  temptation 
to  exceed  the  limits  of  the  law  in  order  to  enforce 
the  law  which  is  involved  in  what  are  called  third- 
degree  confessions.  It  should  be  said  in  this  connec- 
tion, however,  that  legislation  permitting  a  public  ex- 
amination of  accused  persons  under  proper  judicial 
safeguards  would  probably  put  an  end  to  such  abuses 
and  make  the  criminal  law  much  more  effective. 

Reviewing  the  several  causes  of  inefficiency  in  the 
administration  of  justice  above  set  forth  it  is  evident 
that  no  panacea  is  to  be  found.  The  main  points  to 
which  we  should  address  ourselves  appear  to  be:  (i) 
Proper  training  of  the  legal  profession;  (2)  giving  the 
bar  greater  influence  in  the  selection  of  judges  so  as  to 
insure  expert  qualifications  in  those  who  are  to  per- 
form an  expert's  function;  (3)  unification  of  the  ju- 
dicial system  and  more  effective  and  responsible  con- 
trol of  judicial  and  administrative  business;  (4)  giving 
power  to  the  courts  to  make  rules  of  procedure  and 
thus  giving  the  courts  power  to  do  what  we  require 
of  them;  (5)  improvement  of  legislative  law-making 
both  in  substance  and  in  technique;  and  (6)  thorough 
study  of  the  new  problems  which  an  industrial  and 
urban  society  has  raised  and  of  the  means  of  meeting 
them  with  the  jural  materials  at  hand. 

Submitted  by 

Charles  W.  Eliot. 
MooRFiELD  Storey. 
Louis  D.  Brandeis. 
Adolph  J.  Rodenbeck. 
RoscoE  Pound. 

32 


CALIFORNIA   STATE   LIBRARY. 


SACRAMENTO 


i 


Ljautord 


PAMPHLET  BINDER 

■  Syracuse,  N.  Y. 

I^m^    Stockton,  Calif. 


UC  SOUTHER".  -: 


"RARY  FACILITY 


AA    000  683  590    4 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


ItB 


8«^ 


Form  L9-Serie8  4939 


J> 


